{"id":3415,"date":"2025-11-28T11:14:00","date_gmt":"2025-11-28T10:14:00","guid":{"rendered":"https:\/\/www.ra-moellenhoff.de\/?p=3415"},"modified":"2026-08-26T12:13:14","modified_gmt":"2026-08-26T11:13:14","slug":"bafa-authorisation-procedures-what-to-do-about-excessively-long-processing-times","status":"publish","type":"post","link":"https:\/\/www.ra-moellenhoff.de\/en\/foreign-trade\/bafa-authorisation-procedures-what-to-do-about-excessively-long-processing-times","title":{"rendered":"BAFA Authorisation Procedures: What to Do About Excessively Long Processing&nbsp;Times?"},"content":{"rendered":"\n<p class=\"wp-block-paragraph\">In a recent decision, the Frankfurt am Main Administrative Court (VG Frankfurt a.M.) examined in detail the relationship between interim legal protection and an action for failure to act in cases where, from an exporter&#8217;s perspective, the processing time for the grant of an export authorisation was too long. The decision essentially confirms the case law of the highest courts, but also offers a number of important clarifications and practical pointers for exporters (VG Frankfurt a.M., order of 28 March 2025, case no. 5 L 833\/25.F, <a href=\"https:\/\/www.rv.hessenrecht.hessen.de\/bshe\/document\/LARE250000375\" target=\"_blank\" rel=\"noopener noreferrer nofollow\"><strong>https:\/\/www.rv.hessenrecht.hessen.de\/bshe\/document\/LARE250000375<\/strong><\/a>):<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">In brief, the case concerned the following: on 31 January 2025, a company applied to BAFA for an export authorisation for a heat exchanger destined for Turkey (contract value: approximately \u20ac499,000). The contract had already been concluded nine months earlier, in April 2024. After roughly six weeks of processing time, the company filed an application for interim relief with the administrative court in order to compel an immediate decision, but did not pursue a decision on its export application by way of an action for failure to act under Section 75 of the Code of Administrative Court Procedure (VwGO).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">The court dismissed the application for interim relief and, in particular, held as follows:<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Key legal findings<\/strong><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Action for failure to act as the preferred remedy: The VG Frankfurt a.M., which has jurisdiction in such cases due to BAFA&#8217;s seat in Eschborn, once again expressly clarified that, where BAFA is alleged not to have decided on an authorisation application within a reasonable time, an action for failure to act under Section 75 VwGO is the appropriate remedy, not an application for an interim order under Section 123 VwGO. Under the second sentence of Section 75 VwGO, such an action may, in principle, only be brought after three months have elapsed since the application was filed. An earlier action is only possible where &#8220;special circumstances&#8221; justify a shorter period. According to the Federal Administrative Court (BVerwG), such circumstances exist, in particular, where &#8220;waiting out the three-month period would cause the claimant serious and disproportionate disadvantage&#8221; (BVerwG, 22 March 2018, case no. 7 C 21\/16, para. 13).<\/li>\n<\/ul>\n\n\n\n<ul class=\"wp-block-list\">\n<li class=\"has-children\"><span class=\"list-item-text\">No special circumstances where adequate precautions were not taken: In the specific case, the VG Frankfurt a.M. denied the existence of such special circumstances, primarily because &#8220;the applicant did not do what was possible and reasonable to expect of it in order to file the application for its export project with the Federal Office in good time&#8221; (para. 16):\n<\/span><ul class=\"wp-block-list\">\n<li>The company did not file the authorisation application until nine months after the contract was concluded, even though it was aware that an earlier procedure for a similar heat exchanger had already taken several months.<\/li>\n\n\n\n<li>In the VG Frankfurt a.M.&#8217;s view, it should have been clear, at the latest following the breakdown of the coalition government in November 2024, that export applications with a potential Russia connection, requiring interministerial coordination, would take longer to process.<\/li>\n\n\n\n<li>In the VG Frankfurt a.M.&#8217;s view, a processing time of just under two months was not disproportionately long, given the complex assessment of the risk of circumvention deliveries to Russia.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n\n\n\n<ul class=\"wp-block-list\">\n<li>Financial disadvantages must, in principle, be accepted: The court held that financial losses resulting from delayed authorisations, including the risk of contractual penalties and reputational harm, must, in principle, be accepted in light of the constitutionally protected freedom of foreign trade (Section 1 AWG, Article 12 of the Basic Law (GG), Article 16 of the Charter of Fundamental Rights of the EU (CFR)), where companies have not taken the necessary precautions &#8220;through appropriate contractual arrangements or agreements with their business partners&#8221; (para. 16).<\/li>\n<\/ul>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Practical consequences for exporters<\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>1. Timely filing of applications:<\/strong><br>File authorisation applications in good time. This applies in particular to sensitive destinations, goods, and recipients that may be problematic from BAFA&#8217;s perspective, or, more generally, wherever &#8220;red flags&#8221; indicate possible circumvention risks.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>2. Realistic timeline planning:<\/strong><br>For export applications with a potential sanctions connection, factor in processing times of at least 3 to 4 months, in particular where an export project &#8220;could require interministerial coordination on account of a possible Russia connection&#8221; (see para. 16 of the decision). The court expressly considered a processing time of two months to be appropriate in the case of complex proliferation risks (see para. 16 of the decision).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>3. Contractual safeguards:<\/strong><br>Put in place contractual arrangements to account for authorisation procedures, for example clauses addressing regulatory delays, postponement of delivery dates, or the exclusion of contractual penalties, etc. The issue of safeguarding export contracts under export control and embargo law, including in relation to U.S. (re-)export control and embargo law, has grown considerably in importance in recent years. Delays caused by lengthy authorisation procedures are only one aspect here; also to be considered are general export control compliance obligations, prohibitions on certain onward sales, including in the case of incorporation into other products (among others, no-Russia\/no-Belarus clauses), the classification of goods, the extraterritorial effect of U.S. sanctions, the involvement of U.S. persons, end-user and end-use controls, documentation obligations, change-of-law clauses, information and notification obligations, extraordinary termination rights, indemnification provisions, and provisions on liability and contractual penalties, among other matters.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>4. Complete and precise application documents:<\/strong><br>Submit complete and precise documentation in order to avoid queries and delays. In the specific case, BAFA had to request, on several occasions, details of the specific construction project\/power plant, complete end-use certificates, and detailed information on the contracting partner and end user (see para. 5 of the decision).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>5. Notices\/letters of urgency:<\/strong><br>Make use of notices or letters flagging urgency in order to document the time-sensitive nature of the matter. In the present case, the company had repeatedly pointed to the urgency involved; the court noted, in this regard, that BAFA had informed the company, two weeks after the application was filed, &#8220;that, prior to a final decision, the competent federal ministries would need to be involved, which would extend the processing time (file p. 35).&#8221;<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>6. Action for failure to act as the remedy of choice:<\/strong><br>If BAFA has still not decided after three months and no particular difficulties are apparent, an action for failure to act under Section 75 VwGO should be considered. The court will then either decide on the application itself, once it is ready for decision, or set BAFA a deadline for issuing a decision. Under Section 161(3) VwGO, the costs of an action for failure to act &#8220;always fall on the defendant [i.e., BAFA] where the claimant was entitled to expect a decision before bringing the action.&#8221; Where, on the other hand, the claimant was not &#8220;entitled to expect a decision before bringing the action,&#8221; the company bears the costs under Section 154(1) VwGO, as was the case in the decision at hand (see para. 17 of the decision).<\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><strong>Conclusion:<\/strong> The decision underscores that careful planning and contractual precautions are essential. Exporters cannot rely on courts to compel an immediate decision through interim relief proceedings. The action for failure to act remains the central tool available: timely and complete applications, together with realistic timeline planning, help minimise the risk of delays. This is all the more true given that, where a decision has still not been issued within three months, an action for failure to act can then also be a promising remedy of choice.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">If you have any questions regarding practical implementation, for example on contractual drafting or on representing your interests in the course of excessively lengthy proceedings, please do not hesitate to contact us.<\/p>\n\n\n\n<p class=\"wp-block-paragraph\">By <strong><a href=\"https:\/\/www.ra-moellenhoff.de\/en\/lawyers\/stefan-dinkhoff\" data-type=\"page\" data-id=\"1059\">Stefan Dinkhoff<\/a><\/strong><\/p>\n\n\n\n<p class=\"wp-block-paragraph\"><\/p>\n","protected":false},"excerpt":{"rendered":"<p>In a recent decision, the Frankfurt am Main Administrative Court (VG Frankfurt a.M.) examined in detail the relationship between interim legal protection and&#8230;<\/p>\n","protected":false},"author":6,"featured_media":3158,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ghostkit_customizer_options":"","ghostkit_custom_css":"","ghostkit_custom_js_head":"","ghostkit_custom_js_foot":"","ghostkit_typography":"","_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","footnotes":""},"categories":[21],"tags":[],"class_list":["type-post","entry","has-post-thumbnail","last-post"],"_links":{"self":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3415","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/comments?post=3415"}],"version-history":[{"count":1,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3415\/revisions"}],"predecessor-version":[{"id":3416,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/posts\/3415\/revisions\/3416"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/media\/3158"}],"wp:attachment":[{"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/media?parent=3415"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/categories?post=3415"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ra-moellenhoff.de\/en\/wp-json\/wp\/v2\/tags?post=3415"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}